Fatemi v. White et al

Filing 37

ORDER granting 28 Motion to Compel; denying 34 Motion for Protective Order and directing Plaintiff to produce documents, as set forth in this Order. Signed by Judge D. P. Marshall Jr. on 3/5/12. (kpr)

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

WESTERN DIVISION

PLAINTIFF

NASRIN FATEMI

v.

No.4:11-cv-458-DPM

CHARLES WHITE, in his official
capacity; JAMES CLARDY, in his
individual and official capacities;
DEBRA FISER, in her individual
and official capacities; JOHN DAY,
in his individual and official capacities;
UNIVERSITY OF ARKANSAS FOR
MEDICAL SCIENCES; and
UNIVERSITY OF ARKANSAS SYSTEM

DEFENDANTS

ORDER
The Defendants' motion to compel, Document No. 28, is granted. Fatemi
should complete and sign the authorizations for release of her educational,
employment, and medical records - all of which may lead to the discovery of
admissible evidence about material issues. FED. R. Cry. P. 26(b)(1). Fatemi
should also produce, for review and copying, the original tapes of her
recorded conversations with the Defendants and other witnesses, as well as
copies of any transcripts that currently exist. FED. R. Crv. P. 26(b)(3)(C)(ii) &

34(a)(1)(A). Her claim of work-product in these materials is waived, having
never been the basis of a timely objection. FED. R. CIV. P. 33(b)(4). And the
tapes should be produced now, not after the parties to the conversations have
been deposed.
The Court acknowledges the split of authority about the timing of
production. 8 C. WRIGHT, A. MILLER & R. MARCUS, FEDERAL PRACTICE &
PROCEDURE § 2015 (3d ed. 2010). But in the circumstances, the Court is
convinced that Costa v. AFGO Mechanical Services, Inc., 237F.R.D. 21 (E.D. N.Y.
2006), and like cases are the better-reasoned precedent. See also Babyage.com,

Inc. v. Toys "R" Us, Inc., 458 F. Supp. 2d 263 (E.D. Pa. 2006); cf Torres-Paulett
v. Tradition Mariner, Inc., 157F.R.D. 487 (S.D. Cal. 1994); Manske v. UPS Cartage
Services, Inc., 2011 WL 322002 (D. Maine 30 January 2011).

First, the

conversations almost certainly contain substantive evidence about Fatemi's
claims. Second, Fatemi made these tape recordings surreptitiously and
without the consent or knowledge of the other parties to the conversations.
Those circumstances, Costa, 237 F.R.D. at 24-25, weigh against delaying
production of that information until a time more favorable to Fatemi.

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Motion to compel, Document No. 28, granted. Motion for protective
order, Document No. 34, denied. The Court directs Fatemi to complete and
sign the authorizations included in the Defendants' discovery requests, and
produce the original conversation tapes for review and copying (as well as
any transcripts that currently exist), by 16 March 2012.
So Ordered.

D.P. Marshall Jr.

United States District Judge

5 March 2012

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